Case Note & Summary
The case involves a Miscellaneous Second Appeal filed under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (CPC) against the judgment and decree dated 02.07.2018 passed by the Senior Civil Judge and JMFC, Sullia, in R.A. No. 119/2005. The First Appellate Court had allowed the appeal, setting aside the judgment and decree dated 17.09.2005 passed in O.S. No. 15/97 by the Civil Judge (Jr.Dn.) and JMFC, Sullia, and remanded the matter back to the trial court with a direction to issue notice to the general public as contemplated under Order 1 Rule 8 CPC. The appellants, who were the plaintiffs in the original suit, had filed the suit for declaration of title and permanent injunction in respect of certain immovable properties, claiming individual ownership. The trial court had decreed the suit in their favor. The respondents, who were the defendants, appealed. The First Appellate Court, without examining the merits of the case, set aside the decree and remanded the matter solely on the ground that the suit should have been filed in a representative capacity under Order 1 Rule 8 CPC, as the property might be a public road or pathway. The High Court, after hearing both sides, found that the suit was not filed in a representative capacity but for individual rights. The High Court held that Order 1 Rule 8 CPC applies only when a suit is filed by or against a person in a representative capacity, which was not the case here. The remand order was therefore without jurisdiction and erroneous. The High Court allowed the appeal, set aside the impugned judgment and decree of the First Appellate Court, and restored the trial court's decree dated 17.09.2005. The parties were directed to bear their own costs.
Headnote
A) Civil Procedure - Representative Suit - Order 1 Rule 8 CPC - Applicability - The suit was filed by the plaintiffs for declaration of title and injunction in their individual capacity, not as representatives of the public. The First Appellate Court erred in remanding the matter for issuance of notice under Order 1 Rule 8 CPC, as the provision applies only to suits filed in a representative capacity. The High Court held that the remand order was without jurisdiction and set it aside. (Paras 2-6) B) Civil Procedure - Remand - Order 41 Rule 23 CPC - Jurisdictional Error - The First Appellate Court's order of remand was not based on any jurisdictional error or material irregularity in the trial court's decree. The appellate court merely directed a procedural step that was not warranted by the nature of the suit. The High Court allowed the appeal and restored the trial court's decree. (Paras 5-7)
Issue of Consideration
Whether the First Appellate Court was justified in setting aside the trial court's decree and remanding the matter for issuance of notice under Order 1 Rule 8 of CPC, when the suit was not filed in a representative capacity.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree dated 02.07.2018 passed in R.A. No. 119/2005 by the Senior Civil Judge and JMFC, Sullia, and restored the judgment and decree dated 17.09.2005 passed in O.S. No. 15/97 by the Civil Judge (Jr.Dn.) and JMFC, Sullia. No order as to costs.
Law Points
- Order 1 Rule 8 CPC applies only to suits filed in a representative capacity
- not to suits for individual rights
- a remand order must be based on jurisdictional error or material irregularity
- the appellate court cannot remand for a procedural step that is not applicable to the nature of the suit.
